Path 2

Path 2

Lingua Bancarupta

January 6, 2004

About 30 editorial freelancers who contributed to the now defunct Lingua Franca and University Business magazines are being sued in U.S. Bankruptcy Court in Manhattan. University Business LLC, the company that owned the two magazines, filed for bankruptcy in April 2002, and now its court-appointed trustee is trying to recover payments made in the months before the company went out of business—including fees of a few thousand dollars paid to writers, editors, and artists for work done long ago.

A dead magazine putting the squeeze on its freelancers? Insiders are lamenting this sad end to the glorious saga of Lingua Franca, which tweaked higher education and popularized what is now known as the journalism of ideas. In chilly apartments around the city, freelancers are freaking out, calling lawyer friends, and wondering how they will come up with the money.

“It does feel like Chancery Court,” says writer Caleb Crain, who is being sued but has yet to receive a court summons. “It’s very Bleak House.”

“For someone on the outside to contribute to this great magazine, then to have it shut down, then to get this backhanded punishment for our contributions—it’s very traumatic,” says illustrator Jeffrey Tyson.

Lingua Franca founder Jeffrey Kittay has lived comfortably since the death of his father, garment industry tycoon Sol Kittay, in 1982. He launched LF in 1990, then started University Business (UB) seven years later, to support an award winner that generated more buzz than profit. The other two partners in Kittay’s company were his mother, Frieda Kittay Goldsmith, and millionaire hedge-fund manager S. Donald Sussman. Sussman’s company, Paloma Partners, is based in Greenwich, Connecticut.

Though Sussman remained anonymous while the magazines were alive, several insiders say it was his decision to stop writing checks in October 2001 that led Kittay to suspend publication. The final issues of both magazines appeared in November 2001.

According to the bankruptcy petition, about two-thirds of the company’s $3.95 million in liabilities consist of unsecured loans by the three partners. The balance is owed to various parties, including printers, paper suppliers, and consultants.

How did an intellectual’s Elysium come to this? In September, when colleagues began contacting Kittay about the freelancer lawsuits, he seemed “depressed” and “frustrated” by his lack of control over bankruptcy trustee Robert Geltzer. Many defendants accept that explanation, and no one seems to blame Kittay, who enjoys cult status among former staffers. Sussman remains friendly with Kittay, whose 60th birthday party he recently attended.

Sussman, Kittay, and Geltzer did not return calls for comment.

In December, the first round of summonses arrived at addresses as far-flung as Boston, Chicago, and Berkeley. At least two defendants have already settled, while others are receiving advice from the Authors Guild and contemplating their options. The defendants include writers Stephen Mihm, Elizabeth Gardner, and Joanna Smith Rakoff; Steven Gnagni, now a public school teacher in the Bronx; copy editor Joel Bernstein; novelist Siddhartha Deb; and David Kirp, a professor at UC-Berkeley and the author of Shakespeare, Einstein, and the Bottom Line: The Marketing of Higher Education.

Kirp, an old friend of Kittay, says he wrote two final pieces for UB, accepting 50 percent of the $4,500 fee specified by his contract for one and offering the other for free. After receiving the summons, Kirp wrote Geltzer a check for $2,000. Kirp’s final take: about 5 percent of his contracted fee.

Gnagni got a better deal. After UB shut down, Gnagni says, he accepted about 30 percent of the $6,377 he was contractually owed. Last fall, he paid back $500, or about 26 percent of his reduced fee—a victory, considering that Geltzer has been telling defendants he will not accept less than 80 cents on the dollar. Gnagni’s final take: 22 percent of his contracted fee.

On January 6, the first wave of defendants arrived at the old U.S. Customs House on the southern tip of Manhattan. In a courtroom upstairs, Judge Prudence Carter Beatty called on Gavin McNett, a soft-spoken man with sideburns and a canvas book bag.

JUDGE BEATTY: “Mr. McNett, tell me about this $1,000.”

MCNETT: “The magazine was called Lingua Franca, and its relationship with University Business was always a little shadowy.”

The judge told McNett she only wanted to know two things: What work did you do, and when were you paid? He said he had written one article for LF (about the “aquatic ape theory,” which holds that one phase of human evolution involved extended immersion in water—probably wading or diving). The piece ran in the November 2001 issue, and he was paid $1,000 about a month later.

Next up was Ron Feemster, who routinely wrote hard stories on short order for UB, including a piece for the November 2001 issue about how the September 11 attacks rocked universities in Lower Manhattan. Three months later, he was paid 66 percent of the $5,100 he was owed.

“Did you listen to what they just said?” the judge snapped at Geltzer associate Mark Bruh. “One got paid 30 days later, and one got paid 90 days later. . . . It’s known as payment in the ordinary course of business.” She called the lawsuits “trashy” and told Bruh to settle them with anyone who showed up in court, adding, “Ten cents on the dollar would be a good deal for you. You can make your money on the ones that don’t show.”

Outside the courtroom, Bruh asked the writers to call him the next day, then scurried down the stairwell. Asked if he was ready to settle, Feemster said, “I’ve already taken a beating once [referring to his reduced fee]. Why should I take a beating again?”

Marc Abrams, a bankruptcy lawyer at Willkie, Farr & Gallagher, sees nothing “illegal or immoral” about Geltzer’s strategy. He says, “It’s standard operating procedure for trustees to look at all payments within 90 days and bring these complaints in a shotgun manner to see what they can get back. It’s a matter of separating the wheat from the chaff, and the judge obviously thought these were chaff.”

“I don’t think these laws are meant to be used against small-potatoes people like us,” counters Joel Bernstein, a copy editor who worked in-house for UB. Bernstein’s lawyer, Phil Bernstein, has asked for a jury trial, arguing that his brother, Joel, should have been classified as a staffer. (Staff pay is protected in bankruptcy court.)

What was Kittay thinking when he paid his best freelancers a cut rate three months before going out of business? It seemed a good-faith gesture, though the freelancers’ agreements acknowledged that the money could be subject to bankruptcy claims in the future. If Kittay had any real intention of starting another magazine, it seems he would not have risked alienating the team of talent he is famous for assembling.

Besides, one insider notes, a revival is “inconceivable” now that former LF editors James Ryerson and Alex Star are working at The New York Times Magazine.

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